A sampling of today’s headlines:

(1) DOMA RULED UNCONSTITUTIONAL BY FEDERAL APPEALS COURT

(2) DEFENSE OF MARRIAGE ACT OVERTURNED!

(3) DOMA STRUCK DOWN BY FIRST CIRCUIT

(4) FIRST CIRCUIT SHOOTS DOWN DOMA

To which a responsible legal blawgger must footnote:

(1) “Ruled,” yes. We’re not sure what it all means yet.

(2) Well, kind of. It’s complicated.

(3) The smallest federal circuit, the fightin’ First has to be one of the only places where you’ll routinely hear “New England” and “Puerto Rico” used in the same sentence.¹

(4) But not really until the Supreme Court actually rules on the whole thing for everybody all at once.

I feel for legal reporters every time one of these big non-SCOTUS federal appellate cases comes down. I’d bet that about a quarter of the attorneys currently practicing in America don’t even know which federal circuit they are in (let alone exactly what a circuit court does), so it’s not much more fun explaining it to the public.

Here goes.

The First Circuit’s decision in Massachusetts v. U.S. Dept. of Health and Human Services, No. 10-2204  (1st Cir. 5/13/12), aff’g Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) is an exciting step forward toward true marriage equality in the United States. But it’s also not. It’s complicated.

Background

This appeal arises from two different actions, both challenging different applications of the Defense Against Marriage Act (”DOMA”) which the plaintiffs argued improperly denied federal economic benefits (including Social Security death benefits, tax advantages, and Medicare payments to the Commonwealth of Massachusetts) reserved for married couples.²

The Defense of Marriage Act was rushed through Congress in 1996 and signed by a President who had (as we would later learn) quietly redefined his own marriage with some help from a White House intern the year before. In short³, DOMA defined marriage for all federal purposes as “only a legal union between one man and one woman.”⁴

For as much as this may sound like little more than a rhetorical victory for proponents of “traditional marriage,” I can’t think of a shorter law that has had a longer reach. From annual income taxes to military death benefits to visas for non-citizen spouses⁵, it turns out that federal agencies are all up in the business of married couples. There are more than one thousand individual federal statutes which specifically mention marriage. In one swoop of the President’s pen, DOMA ensured that none of them would acknowledge (let alone protect) any union other than one man and one woman.

Massachusetts was the first jurisdiction in the U.S. to recognize full marriage equality⁶ at the state level in 2004’s historic Goodridge v. Dept of Public Health. It is no coincidence that the Commonwealth is now the lead plaintiff in the most important anti-DOMA appellate case to date, arising from a 2010 federal district court ruling.⁷

Before I get into what this decision is all about, keep in mind what it is not about. The central issue in this case is not about “legalizing” same-sex marriage nationally, but merely asking the federal government to recognize marriages already recognized by state law. Its refusal (pursuant to DOMA) to do so to date has caused heartbreak (deportation and visa denial of non-citizens legally married to U.S. citizens), financial hardship (denial of survivor benefits from military service, Social Security, etc.), and any number of other evils large and small for decent people trying to make lives for themselves in the increasing number of states to have embraced marriage equality. (The decision also does not touch upon DOMA’s controversial provision forbidding states from recognizing each other’s same-sex marriages.) If this is an “activist” decision⁸, it is about as modest as anything of that description could possibly be.

Eh… tl;dr. Can you give me enough to sound smart at a cocktail party?

Sure! I mean, I only just read this thing along with everyone else, but here are my initial impressions:

(1) No matter what you think of it, DOMA was a rush job….

“The entire statute… must–having only two operative paragraphs–be one of the shortest major enactments in recent history,” Judge Boudin writes. He goes on throughout the opinion to complain that the statute was rushed through with “minimal hearings,” was entirely “lacking in formal findings” and “devoid of the express prefatory findings commonly made in major federal laws,”; perhaps worst of all, it was railroaded through after “only one day of hearings” with no testimony whatsoever provided as to its possible implications for “the numerous federal programs at issue.” Indeed, Boudin notes with a certain sort of New England-y laconicism, “[s]ome of the odder consequences of DOMA testify to the speed with which it was adopted.”

(2) “…but only the Supreme Court can finally decide this unique case.”

This is a constant theme, both implicit and explicit, underlying every paragraph of this decision. While all published appellate rulings are drafted in view of an inevitable appeal, Boudin is actually directly addressing the Supreme Court here in a way that I’ve never quite seen before:

But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even it it approves the result will formulate its own explanation).⁹

It is also notable that almost all of the precedents cited are SCOTUS decisions (rather than looking at what the other circuits have said about related issues), and the ruling itself has been voluntarily stayed by the First Circuit pending review by the court of last resort.¹⁰

(3) Money is no object.

Will repealing DOMA cost the federal government more money? Maybe, or maybe not.¹¹ It really doesn’t matter. Rights are rights, and the whole point of a disadvantaged minority group taking its case to a federal court is to be sure that rights which may not otherwise be protected by the voting populace in a democratic society are ensured equal treatment under the law.¹²

(4) DOMA is about adults, not kids.

“But what about the children!?” has always been an easy fallback, but Boudin cleanly disposes of it in a single paragraph. DOMA is about marriage, and nothing else. Massachusetts and other states recognizing marriage equality are free to permit same-sex parents to adopt children or employ surrogate mothers, with or without a federal definition of marriage.

(5) States can still do it for themselves.

While specifically dodging Section 2 (DOMA’s attempt to override the Full Faith and Credit clause of the U.S. Constitution), this decision reiterates the obvious point that the federal government’s repeal of DOMA would not force anything on anyone. It would simply respect existing state law.

(6) But wasn’t Congress only attempting to “temporarily freeze” the possibility of marriage equality “to reflect” on the situation?¹³

No. They weren’t. Unless you just ate that pint of Ben & Jerry’s to “temporarily store it” somewhere until you cleared up some freezer space. Have you even read this three-paragraph statute? Go away.

(7) “Moral disapproval” is not, in and of itself, an appropriate basis for legislation. But don’t hate the haters–hate the game!

In his search to find any basis for DOMA in the Congressional record (which is, to make the point yet again, unusually scarce here), Boudin cites a number of statements made by elected representatives on the record that homosexuality is “morally wrong” and DOMA was intended as a “moral disapproval” of its possible recognition by the federal government. In view of the Supreme Court’s 2003 decision striking down all state sodomy laws and other post-DOMA rulings on LGBT rights, Boudin somewhat cryptically notes that while “moral judgments can hardly be avoided in legislation… [subsequent cases] have undercut this basis.” He then goes on to specifically criticize the plaintiffs’ allegation that “DOMA’s hidden but dominant purpose was hostility” to openly gay Americans and gives Congress the benefit of the doubt in finding that “the many legislators who supported DOMA acted from a variety of motives”–and only “a small group” of these were openly hateful about it.

Interesting. And perhaps just a little more diplomatically than I would have put that.

(8) Strike 3! (Kind of.)

The First Circuit has struck down DOMA’s cold, angry heart: the definition of marriage contained within Section 3. But this decision is stayed until the Supreme Court can review it, which will be no sooner than next year at the earliest.

(9) Bonus! How did they get there? (Optional reading for non-lawyers.)

Appellate nerds will note that I have not mentioned this decision’s rather unusual sidestepping of the usual equal protection analyses which are supposed to be conducted by higher courts in these cases in favor of something which Boudin casually refers to as “scrutiniz[ing] with care.” As opposed to the familiar “strict scrutiny,” “intermediate scrutiny,” “intermediate scrutiny with bite,” and the other standards tailored by the Supreme Court in recent years, this apparently new standard may be immediately distinguished by the fact that it does not exist. It’s a strange sort of crepuscular dodge which allows the First Circuit to hold to its traditional stance that sexual preference is not necessarily a “suspect classification” for equal protection purposes. (This kind of caution is wise under the circumstances, but I still can’t see this as anything but a missed opportunity.)

It seems to me that while the 1st is leaving wide latitude for the Supreme Court to overrule this part of the decision (perhaps even with some small gratitude), the true foundation of the ruling is in federalism and Tenth Amendment principles–the idea that states should have the right to decide certain issues for themselves in matters where the federal government has no clear overriding interest. While Boudin concedes that the federal government certainly has some reason to care about the definition of marriage, the panel ultimately finds that the burden on states such as Massachusetts is simply too great and that Congress was simply trying to “put its thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.”

There is a lot more to say about the underlying reasoning of this decision, but I think it really deserves its own post. And I’ll leave that to an actual Constitutional lawyer who is not attempting to analyze this ruling on the day it was handed down.

(10) Wait, what about non-economic benefits (i.e. visa petitions)?

Finally–and this is probably really just my personal bias–there is not a word anywhere here about immigration benefits. The focus is almost entirely upon economic and entitlement benefits for same-sex couples, but overlooks the fact that DOMA in its current form prevents unknown thousands of married partners from being able to remain together in the United States. While they would also clearly benefit from DOMA’s demise, I was disappointed that these vital stakeholders didn’t even get a passing mention.

—-

I am writing this just a little more than 12 hours after the decision came down, and after only a few hours of reflection. But what does it all mean? Will the SCOTUS take the assist and knock it out of the park, or fumble the hat trick?¹⁴ Will the aptly-named BLAG step up to conduct the hate train now that the Obama administration has disavowed DOMA? How angry will Scalia’s dissent be?

Find out in Anthony Kennedy Beyond ThunderDOMA! (Summer 2013!)

1. To be fair, they had to stick Puerto Rico in somewhere. More importantly, the circuit court judges needed somewhere other than Boston to be in December. [↩]
2. There’s a lot of procedural history–and it’s fascinating, really–but it’s a lot more than we need here. [↩]
3. and you can’t get much shorter than the actual text of the law itself [↩]
4. It also legislatively overruled the Full Faith and Credit clause of the U.S. Constitution by preventing states from recognizing one another’s valid same-sex marriages, but that is a completely different topic not addressed in today’s decision. [↩]
5. To name only a few of the hundreds of possible implications [↩]
6. as opposed to civil unions or any other legal benefits for same-sex couples [↩]
7. This case famously included Judge Tauro’s question to a Justice Department attorney defending the government’s position that a military veteran could not be buried with his male spouse in a military cemetery if the federal government had an interest in “perpetuating heterosexuality in the graveyard.” [↩]
8. I really don’t think it is, and anyone who says otherwise should note that two of the three panel members were Republican appointees [↩]
9. But wouldn’t you rather just adopt ours? We went to all this trouble to write it out for you, and we really do quite like it. [↩]
10. While this will inevitably disappoint those who have been fighting so hard for marriage equality, the alternative would have been to somehow carve out New England and Puerto Rico as the only places in the United States where full marriage equality is recognized. For as much as I just enjoyed typing that last bit, this would cause all manner of chaos throughout any number of agencies and likely have unintended ripple effects throughout the nation before the Supreme Court had a chance to properly settle the matter. [↩]
11. Incidentally, the First indicates that it is leaning toward the “maybe not” side here. [↩]
12. Eh, just read the opinion for this. This is one of the best summaries of the inevitable countermajoritarian function of the federal courts I’ve seen in awhile. [↩]
13. Seriously, I know this sounds like a straw man–but this was an actual argument advanced during the course of this appeal. [↩]
14. Oh, sports! When will I ever understand you? [↩]

1st Circuit, U.S. Supreme Court, massachusetts

“Tiny Weapons” could be (but is not) a sparkly J-pop duo or a bearded, Brooklyn-based indie-folk collective. Happily, it is instead the focus of today’s Appeals Court decision in Commonwealth v. Cruz-Rivera (08-P1758, Dec. 18, 2009). In relevant part, the court sensibly held that:

Contrary to the motion judge’s findings, there was no evidence that pill-bottle sized weapons had “proliferated” nor was there evidence that the defendant had a specific history of using tiny weapons.

Cruz-Rivera was subjected to a traffic stop after he was observed operating his vehicle in “an unsafe manner.” Although there was some belief that he might somehow be a person of mild interest in connection  an incident in Lowell,¹ there simply wasn’t enough to hold him or charge him with anything. Following a routine patfrisk for officer safety, the defendant was declared free to leave just before officers decided—and hey, why not, while we’ve got him here—to perform a detailed, comprehensive, fine-tooth search of his vehicle for reasons never really clearly stated on the record in any kind of way that should have passed the laugh test.

Almost immediately at the outset of the search, officers proceeded to examine a large-ish “vitamin pill bottle” in the vehicle’s center console, in which they found… well, you can probably guess. Nothing my mother ever made me take—although it might have gotten me through my chores  a lot faster.

The defendant moved to suppress the evidence as the result of an unlawful search, and the motion judge found that “[b]oth officers [had] received training indicating a proliferation of smaller weapons that are easily concealed in small containers…. which include razors, knives, and pen-sized single-shot guns, ” although it was “perhaps a relative longshot” that they might find a “small knife or a one-shot revolver.”²

On appeal, the Appeals Court reversed the motion judge, holding that:

On this record, it simply was not reasonable to believe that the defendant might, upon his release with a message that he was free to go, enter his car, reach into the console, open a pill bottle, extract a weapon smaller than four and one-half inches by one and three-fourths inches and use it in an effort to harm the two nearby, fully armed police officers who had just released him. Indeed, allowing police to search the pill bottle under the circumstances this record reveals would, as a practical matter, essentially remove most constitutional brakes on police power to search the contents of motor vehicles stopped for routine traffic incidents.

Exactly the right result. Remember:  this was a vitamin pill bottle. We’re not talking about a massive bottle of Vicodin with someone else’s name on it, a green plastic box labeled “Rebekah’s Pot,” or, indeed, a dodgy titanium cylinder marked “CAUTION! TINY WEAPONS INSIDE!” Having found no other reason to hold the defendant, the police conducted an invasive search of his vehicle which included areas that no reasonable person would ever believe to contain weapons, and then attempted to justify the whole thing after the fact with a weird explanation of how small weapons can be, sometimes, in the known universe. (Also, quick protip: Any true collector knows that tiny weapons begin to lose their value pretty much immediately unless they are protected from the elements in a childproof screwtop vitamin bottle.)

As I have discussed in this space more than once already, officer safety is serious business. I don’t discount the entirely-valid concerns that should arise when police engage a suspect for even the most routine traffic stops, and officers should be encouraged to take all reasonable measures to protect themselves—but there’s nothing wrong with an appellate court stepping in to ensure that the limits of these searches are properly circumscribed. Having already decided that a suspect is free to go, there is simply no defensible reason to conduct an invasive search of every container in his vehicle.

Well, anyway. If you are the kind of person who is inclined to believe that criminals are always “getting off” on “technicalities,” (and it happens far less often than you might think, anyway) you may want to read these facts again—and kindly remember that the Constitution is never a technicality, at least not here in the Commonwealth.

1. Not quite as bad as it sounds: see footnote 2 in the opinion [↩]
2. Unless, of course, the defendant was wanted for questioning in connection with the assassination of President Garfield. [↩]

Criminal Appeals, massachusetts

Anyone who hated Melendez-Diaz v. Massachusetts now finds themselves looking down the barrel of Commonwealth v. Hollister, App. Ct. No. 08-P-1080 (Nov. 17, 2009), in which the Appeals Court has reversed the conviction of a defendant who did not have the opportunity to cross-examine the technician who determined that the loaded gun at issue was a “firearm.”

Melendez-Diaz was, of course, the most important criminal law ruling from the Supreme Court’s last term. As I’ve already discussed (more than you ever really need to know here and here) it was an elegant and, at base, nearly inarguable Scalia decision which held that introducing certifications of drug lab results without the opportunity to cross-examine their authors at trial is a violation of a defendant’s Sixth Amendment right to confront all witnesses against him. There was never any question whether Melendez-Diaz would be extended to ballistics evidence—as, indeed, it recently formally has been in Morales v. Massachusetts, 129 S. Ct. 2858 (2009)—but the real question was always “how far?” Hollister provides an interesting signpost in that direction.

Hollister concerned an unlicensed possession of a firearm charge arising from a loaded gun found in the glove compartment of the defendant’s truck. During a bench trial, the judge had an opportunity to inspect the weapon itself, as well as a certificate from a ballistics technician who had tested the gun and determined that it fit the statutory definition of a “firearm.” This definition includes:

…a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured.

—G.L. c. 140, § 121 (emphasis added)

This definition necessarily requires that each and every weapon at issue in a gun possession case must be tested by a certified ballistics technician to determine whether the thing is actually operable, just as the chemical makeup of suspected illegal substances must be scientifically confirmed in a drug lab. While the process of testing out guns may be a bit less science-y (if not a lot more fun) than that of spectrographically analyzing dodgy powders, it is still evidence prepared in anticipation of trial which, if properly proven, will provide definitive proof of a significant element of the charge.

It is, in other words, squarely within the kind of evidence which Melendez-Diaz has held must be supported by live testimony at risk of violating the defendant’s Constitutional rights. Under traditional appellate review standards, it becomes the Commonwealth’s burden in each case in which such a violation may have occurred to prove that this Constitutional error was “harmless beyond a reasonable doubt.”

It’s easy to imagine a drug case in which failure to give the defendant the chance to cross-examine the lab tech on his findings might be held to constitute harmless error, and Massachusetts courts have been happy to do so more than once in the months since Melendez-Diaz came down. There are plenty of circumstantial factors—smell, appearance, results of field testing, the presence of scales, cash, and drug paraphernalia, and/or your massive library of live Phish bootlegs, etc.—which may be considered in order to find that any given substance is an illegal drug, and the Commonwealth routinely introduces these right along with lab certificates in such cases. But the only truly reliable way to determine if a given gun is a “firearm” in the statutory sense¹ is to shoot it at something and see what happens. (To be fair, the [admittedly slight] odds that the loaded gun found in the defendant’s truck in Hollister was not actually a “firearm” were probably actually much better than those that one of the plastic sandwich baggies full of white powder in Melendez-Diaz was not some kind of illegal substance. On a purely practical level, there is at least some rationally justifiable reason to keep a fake or broken gun handy—never know whom you may need to scare off, I suppose—at least more so than stashing baggies full of baking soda or whatever).

Hollister was tried and appealed pre-Melendez-Diaz, and really doesn’t have much practical use in a world where prosecutors have already taken to introducing the supporting testimony of analysts of every kind to preclude this issue altogether. Still, it’s a natural and welcome development in post-Melendez-Diaz caselaw, and the Appeals Court has [marksmanship metaphor of your choice here] on this one.

1. Assuming that no one is prepared to testify that they had seen it fired before [↩]

massachusetts

So. Gatesgate.¹

For as eminently debatable as this week’s arrest of Professor Henry Louis Gates and its aftermath may be for people who are properly qualified to discuss the state of race relations in America, I am not one of those people.² But I have been excited to see how much attention this story has brought to the Commonwealth’s colonial-era disorderly conduct statute, and this is as good a time as any for us to review once again why its continued existence is nothing but an embarassment to us all.

Professor Gates, as we all know by now, was arrested for disorderly conduct on his own front porch in Cambridge last week. Police had been called by a concerned citizen who reported a burglary while watching Gates and his driver attempting to strongarm a door to which Gates had misplaced his keys after a trip to China. The police arrived and established Gates’s identity with a photo ID which included the address in which they were standing.

According to the police report, Gates then became upset and expressed his opinions regarding the injustice of the situation, the Cambridge Police Department, and the treatment of African-American men by police in the United States, at which point he was cuffed and arrested for disorderly conduct as a small crowd gathered. The charge was subsequently killed several days later, together with the usual “not our best moment, not his best moment” statement from the Cambridge PD.

Letting this go was the right move for all concerned, obviously. But what if the case had gone forward?

As I have previously discussed as thoroughly as I cared to, the Commonwealth’s disorderly conduct statute is a facially unconstitutional 400-year-old mess that has been preserved only through willful acts of judicial alchemy. Unfortunately, its many vagaries and moving parts have made it a reliable standby in the collective arsenal of law enforcement officers throughout the Commonwealth and, right or wrong, it is all too common to see this charge brought after an arrest in which the defendant has forgone his Fifth Amendment right to remain silent in favor of his First Amendment right to express his opinion about the situation.

The defense’s first strategy would almost certainly have been to move to dismiss the charge. Looking at only one of this crime’s many possible elements, it is highly unlikely that Gates’s alleged conduct (even assuming that it was just as obnoxious as reported) caused or created a risk of “public inconvenience or alarm.” According to the police report, his confrontation with police began in his own kitchen after he had provided them with evidence of his identity; he was then was invited to step out and continue the discussion on his own front porch. Although the police report alleges that a small crowd was gathering at this point, the fact remains that the officers had no reason to be there once they had established that Gates had not just burgled the place, and it seems highly unlikely that that this gracefully-aging gentleman with a cane, a bronchial infection, 12 hours of jet lag, and a Harvard ID was otherwise likely to pose any risk of “public inconvenience or alarm.”³

The “public” element aside, however, there is the basic issue of a citizen’s right to vocally disagree with the police. While most reasonable people can agree that it’s probably best to keep calm in the face of possible arrest, it is also understandable that, as the U.S. Supreme Court has previously held, your average law-abiding citizen is going to get a little worked up if he feels that he is being treated like a criminal for no good reason. Despite the best efforts of the police to work the magic words “tumultuous” and “served no legitimate purpose” into the affidavit in support of the criminal complaint [page 4], Gates’s conduct closely resembles that of defendants in at least two other Massachusetts appellate cases⁴ in which disorderly conduct convictions have been reversed:

In Commonwealth v. Lopiano, 60 Mass. App. Ct. 723 (2004), police had just witnessed the defendant assaulting his girlfriend before they moved in to arrest him; he then began flailing his arms and yelling loudly about his civil rights and such. In reversing his conviction for disorderly conduct, the Appeals Court noted that his behavior was not “extreme” or otherwise threatening, and was not therefore statutorily “tumultuous.”

Commonwealth v. Zettel, 46 Mass. App. Ct. 471 (1999), my personal favorite in this line of cases, held that a difference of opinion with a police officer is a “legitimate purpose” that may provide a proper defense against a charge of disorderly conduct. Although the defendant in Zettel had actually kicked a cop in the shins following an argument with him over her right to a parking spot in Fall River, the court held that her conduct arose from a “legitimate purpose” for causing a scene. But this is consistent: Massachusetts and other jurisdictions have found “legitimate purpose” for causes as diverse as protecting your water supply and attempting to save your marriage, so why not challenging a police officer who is expressing an intent to arrest you?

For as much fun as this little Gedankenexperiment may be, we are still talking about a criminal offense which carries up to six months of committed time. Disorderly conduct charges are regularly and routinely brought against defendants of every description around the Commonwealth—most of whom do not have Al Sharpton on speed-dial—under nearly identical circumstances. Let’s hope that all of this publicity will finally shame the legislature into putting G.L.c. 272 Sec. 53 out of its misery.

1. Note: Nobody should ever call this incident “Gatesgate,” for any reason. [↩]
2. For what it’s worth, I believe that the heartless and disturbingly insensitive prosecution of UMass Amherst student Jason Vassell is a far better example of the point that Gates and his supporters have been trying to make… it was really only the fact that it happened in Western Massachusetts that has kept it out of the conversation. [↩]
3. This is generally defined as “affecting or likely to affect persons in a place to which the public or a substantial group has access.” Commonwealth v. Molligi, 70 Mass. App. Ct. 108 (2007). So maybe a few people could hear him from the sidewalk—but so what? I just don’t see it. “Public” really should mean “public.” As a policy matter, this statute is supposed to preserve public order, not the sensibilities of police officers. [↩]
4. There are many more, but these are the two that immediately came to mind when I read the Gates police report [↩]

disorderly conduct, massachusetts, stupid laws

There’s something kind of inherently dodgy about sequels. They’re usually nothing more than a quick buck and a cheap laugh, the faint shadow of what we enjoyed so much the first time around. For every beloved classic that really captures what worked in the original (Terminator 2, The Godfather: Part II, The Empire Strikes Back), Hollywood cranks out vaults of best-forgotten throwaways (see¹ every other Terminator sequel, The Godfather: Part III, The Phantom Menace²).

The Supreme Court’s 5-4 decision in Melendez-Diaz v. Massachusetts [PDF] was released earlier today as a followup to its critically-acclaimed performance in Crawford v. Washington. To the surprise of pretty much no one I know who cares about these things, Justice Scalia’s majority opinion came down almost exactly as I predicted it would a few days ago. (Just a warning: The following might get a little confusing if you haven’t read that post, or any other review of the issues in this case.)

As sequels go, Melendez-Diaz is a formula job. Scalia revisits everything that we loved about Crawford, and once more finds that the Confrontation Clause was intended to mean exactly what it says: a criminal defendant “shall enjoy the right… to confront all witnesses against him.” As of today, this is true even—or perhaps especially?—if those witnesses happen to be wearing lab coats. Melendez-Diaz has emphatically held that evidence of the chemical composition of an alleged controlled substance may not be introduced without the supporting live testimony of an analyst responsible for this testing. It’s a good result, and I’m happy to see it.

I don’t know about you, but I hate it when sequels re-cast major characters.³ While Scalia reprises his Crawford role as the dorky-but-likeable strict constructionist leading man here, Thomas⁴ plays the plucky swing voter, and Kennedy⁵ serviceably captains a grumbly dissent that is a full ten pages longer than the majority opinion. It’s all kind of confusing.

Justice Thomas, still riding high from recent cases in which he was the lone voice in favor of both gutting the Voting Rights Act and giving the government the green light to probe the underpants of our nation’s 13-year-old girls on a whim⁶, filed a one-page concurrence in which he basically agreed with Scalia on every point (nothing new there), but also made it clear for the record that he only supports Crawford as it relates to “formal testimonial” statements.⁷

This was more the kind of thing that I was expecting from Chief Justice Roberts⁸, but Roberts joined Kennedy’s rambling 33-page⁹ dissent together with Alito and Breyer. I would dig into this dissent more, but I’m just not up to it right now, mostly because: (1) caselaw, like history, is written by the winners and (2) I don’t like it very much. While I do agree that Scalia has overstated the efficacy of the so-called “burden-shifting statutes” used in many states, I was otherwise entirely unpersuaded by Kennedy’s arguments. I will note only that the idea that 21st-century chemists are in any way comparable to 18th-century copyists simply doesn’t pass the laugh test, and that I think that he otherwise vastly overstates both the import and the potential impact of this decision even as he indulges in an unbecoming display of haughty pragmatism. Besides, lengthy contextual examinations of what the Framers were thinking at any given moment is the kind of thing that really only works for one of the Court’s current members—and he’s on the other side of this one.

It’s really unfortunate that a case of this significance had to be so closely divided, but it is especially interesting to see who ended up where. The Court’s three (arguably) most “liberal”¹⁰ justices have teamed up with its two avowed conservatives against four of its most consistently moderate thinkers. Like so many Supreme Court-worthy cases, however, Melendez-Diaz presents issues that are far more important than the typical “conservative” or “liberal” distinctions with which the rest of the country has become so obsessed. As Walter Dellinger just noted in a Slate post, these two unlikely combinations of justices can be viewed as “legalists” (what does the law say?) versus “pragmatists” (what will this result achieve?), and Justice Sotomayor can’t necessarily be counted upon to reliably fall upon either side of this split if and when she takes the bench.

Well, anyway. This case may not be as much fun to talk about as today’s Redding “strip-search” ruling, but I’m fairly confident that it will ultimately prove to be far more important, both here in Massachusetts and elsewhere.

1. Or, better yet—don’t. [↩]
2. Yeah, I know: it’s a prequel. So maybe I’m assuming that the Supreme Court and Star Wars attract totally different packs of fanboys. Throw me to the Sarlacc. [↩]
3. E.g., Katie Holmes’s replacement by Maggie Gyllenhaal during the course of the Batman reboot. It’s a small thing, I know, and I actually like Gyllenhaal better—but still: Why? [↩]
4. Yeah, that Thomas. [↩]
5. Yeah, that Kennedy. [↩]
6. Seriously, I wish that were just a stupid joke. Today’s wantonly authoritarian dissent in Redding is one of the single scariest things I’ve ever read in a Supreme Court opinion issued in my lifetime. [↩]
7. Read: Barely agrees with Crawford at all. [↩]
8. This was, after all, the essence of the position taken by his mentor William Rehnquist in his Crawford concurrence, and it is otherwise fairly consistent with Roberts’ brand of moderate conservatism [↩]
9. Including not one, but two appendices full of [mostly pre-Crawford] cases that this decision will allegedly disturb or overturn… [↩]
10. This is relatively speaking: I continue to maintain that there have been no true “liberals” on the Court in my lifetime. [↩]

Criminal Appeals, U.S. Supreme Court, massachusetts

…and you’ll get something like today’s opinion in Commonwealth v. Harrington, which came down in favor of the Commonwealth today to the surprise of exactly no one.

I happened to be in the Appeals Court the morning that they took up this unusually amusing case. Here are just a couple of instructive excerpts taken verbatim from my notebook:

JUSTICE GREEN (within first minute of argument): “I don’t know why this case is here.”

JUSTICE BROWN (waving his arms around umpire-style): “The Commonwealth wins on all five issues here. All five! That’s called a shutout. The Commonwealth has nailed it.”

It’s not often that appellate judges tell you exactly how they’re going to dispose of a case during the course of oral arguments, let alone within the first sixty seconds. Usually cases in which the outcome will be so obvious are relegated to the purgatory of the appropriately-named “non-argument list,” and the parties never have a chance to show up to explain themselves before an opinion issues. Having actually seen this one for myself, however, I have to suspect that the Court only put it on the calendar for the same reason that Steven Hawking might want to keep a book of easy Soduku puzzles handy on the coffee table: It’s just good, clean, mindless fun.

As an appeal, Harrington had only one reason to live: a District Court judge with a grudge against the current state of the Commonwealth’s ridiculous disorderly conduct statute which dates back to his time as a Massachusetts state representative.¹

In the course of a totally routine disorderly conduct case, the judge took it upon himself to try to convince the Court of Appeals that it should hold the current interpretation of the statute² unconstitutional and strictly limit the law to its face.

Harrington came to the Court not as a direct appeal but via something which, the Court snidely notes, “ostensibly” took the form of a “reported question” under Mass.R.Crim.Pro 34. (This is a fun-but-rarely-used vehicle by which trial courts may send up questions of law which are “so important or doubtful” as to require resolution by the Appeals Court before proceeding to trial.) But the Court is not even convinced that there is a “question” in Harrington at all, and they’ve certainly got a point.

Three of them, actually:

1) The District Court was asking the Appeals Court to overrule the Supreme Judicial Court. This not only directly violated Robert Heinlein’s familiar proscription against teaching pigs to sing³, but may in fact have actually been more pointless than that.⁴

It’s just Not How Things Are Done, is what I’m trying to say. Lower appellate courts can’t overrule higher ones; they just can’t, no more than a lowly squaddie may draw up detailed battle plans, a state governor set federal immigration policy, or an older sibling overrule a curfew set by the head of the household. Even the courts have a chain of command, and it has to be followed just as strictly as any other.

2) The Appeals Court has not seen the inside of a college dorm room for many, many years. To my knowledge, none of them own beanbag chairs, hackeysacks, or drug rugs, and they certainly do not want to sit up late with you for academic bull sessions while drinking Jolt Cola and listening to John Zorn records. If they are going to strike down a statute⁵, they’re going to have to have an actual appeal based upon an actual start-to-finish case in front of them to hang their actual decision on. They’ve already got more than enough actual appeals from actual cases to deal with, thank you very much, and they just don’t have time for your what-ifs.

3) The legislature has amended this statute twice since the Commonwealth’s highest court handed down Alegeta, and the law generally presumes the Great and General Court are all total SJC fanboys/girls who spend their weekends updating their pocket parts. If our elected representatives had believed that there was something wrong with the way that our unelected judicial gatekeepers had interpreted the statute, either of those amendments could have done something about this. But they didn’t.

1. I totally agree on this, but I’ve already hated on this statute more than once in this space and I’ll try to restrain myself now. [↩]
2. Following the SJC’s opinion in Alegata v. Commonwealth, 353 Mass. 287 [1967], this law now officially includes a definition of “disorderly” which is found nowhere in the statute [↩]
3. ”…it wastes your time and annoys the pig.” [↩]
4. Maybe I’ve just read Charlotte’s Web one too many times, but I have to believe that there might be a particularly talented, irresistably anthropromorphic, pig out there somewhere who could actually be taught to sing. [↩]
5. Which, on balance, they probably won’t anyway [↩]

Criminal Appeals, disorderly conduct, massachusetts

There’s this amusing phenomenon which may be observed when those with no prior exposure to the weird social/legal/historical/political realities of the Commonwealth first innocently wander into them. I call it Mass Confusion, and it has reigned in the blawgosphere in the last couple of weeks since the First Circuit’s Friday the 13th ruling in Noonan v. Staples, Inc., No. 07-2159 (2009).

I’m just going to voice my respectful dissent on this right up front. This is all just one kid’s opinion, but whatever else this decision may be, it is not “the most dangerous libel decision in decades.” It has not “turned libel law on its head,” it is not a “bizarre twist,” it has not held that “truth is no longer an absolute defense” to libel, and it doesn’t “threaten to overturn” anything.

The boring truth is that in Noonan the First Circuit has merely glancingly condoned (as opposed to having definitively upheld) a highly questionable state law on reasonable procedural grounds. Somehow all of the critics of this opinion seem to have lost sight of the fact that the standard here was not that which would have been used had the court reviewed the case on the merits after trial, but only in terms of a motion for summary judgment: was there a “triable issue of fact” under existing Massachusetts law? Sadly, there was.

This is not to say that I agree with the outcome: At the end of the day, I’m a public-interest attorney, a progressive voter, an ACLU member, and an uncompromising defender and fan of the First Amendment. But this is an appellate, and not a First Amendment, blawg, so the following analysis is conducted accordingly.

The facts are far simpler than the law, so let’s begin at the beginning. Plaintiff Noonan was a Staples employee who engaged in some shady accounting (not a lot, but enough to get noticed) on his expense accounts and such during the course of his employment there. Staples caught Noonan, fired him, and made an example of him in a mass email sent out to all 1,500 of his former colleagues in the company’s North American division. Noonan did not seriously contend that the email as published was not true, but sued Staples anyway on the theory that it was libelous. In Noonan, the First Circuit (Tourella, J.) has agreed that it is possible that a reasonable person could have found the email to have been libel under Massachusetts law, and has remanded to the district court for further proceedings.

This, of course, is the part where every American law school graduate’s head explodes. How could a statement which is empirically true ever constitute libel? Truth is the “absolute defense” to libel, right? Yes. Yes, it is. Everywhere but the Commonwealth.

That’s right: You’re in the jungle now. Welcome to the jungle.

Let’s get to the law: Read more…

1st Circuit, massachusetts, stupid laws

Former Catholic priest Paul R. Shanley was back in the news this week when his appeal from denial of his motion for a new trial following his 2005 conviction on sex abuse charges was accepted for further review by the Massachusetts Supreme Judicial Court. His motion, largely based upon the allegedly improper use of expert testimony regarding so-called “repressed memories,” raises some interesting issues, and I look forward to seeing how the SJC addresses them.

Since it’s not often that a motion for a new trial makes headlines, I thought that this would be a good time to address questions which I am often asked in connection with vacating convictions in Massachusetts. I should note up front that while practitioners typically refer to this process as a “motion for new trial,” these motions are also legally identical to motions to withdraw a guilty plea, and are often collectively referred to as “motions to vacate.” I will be using this last term throughout this post not only because it is somewhat simpler, but also because I like the sound of it.

What is a motion to vacate?

Rule 30(b) of the Massachusetts Rules of Criminal Procedure states that judges may vacate prior convictions “at any time” upon a showing that “justice may not have been done” in the prior proceedings. This includes convictions arising either from trials or guilty pleas.

If turning back the clock to rectify a situation in which “justice may not have been done” sounds like a job for Superman—or, if Mr. Kent is otherwise engaged, perhaps Matt Murdock—you can think of Rule 30(b) as a Massachusetts judge’s own personal phone booth. It bestows the courts with extraordinary powers, which is exactly why they generally choose to exercise them only in extraordinary circumstances.

How is a motion to vacate different from an appeal?

Motions to vacate differ from direct appeals in two significant ways:

1) Timing.  Notice of direct appeal from a criminal conviction must be brought within 30 days of the date of conviction, although late appeals may be permitted under certain circumstances. Under Rule 30(b), however, a motion to vacate a conviction may be brought “at any time.” It is not uncommon to see these motions brought decades or more after the original conviction, usually when the defendant is facing serious collateral consequences such as deportation or enhanced sentencing in a subsequent charge.

2) Content. New evidence may not be raised on direct appeal, as all claims made on appeal must be supported by the settled record in the trial court. A motion for new trial presents an opportunity to expand the record with information which did not appear in prior proceedings. This could be exculpatory (newly-available eyewitness testimony, new scientific evidence, etc.) or, more commonly, evidence as to elements of the trial (usually, but not always, attorney performance) which are not immediately apparent from the face of the record.

What does it take to vacate a conviction?

Grounds for a successful motion to vacate can vary widely, and you should consult an attorney who is experienced with these unique and highly technical motions if you believe that “justice may not have been done” in any criminal proceeding. Possible reasons for vacating convictions will depend entirely on the circumstances of your case, but they may include deficiencies in the plea hearing, problems at trial (including ineffective assistance of trial counsel), and/or newly-available exculpatory evidence.

Dude, I was totally high when I pled to that. Shouldn’t I get another chance?

Maybe, but probably not. Read more…

Criminal Appeals, massachusetts massachusetts, post-conviction, vacating convictions

As of today, the partial decriminalization of marijuana has officially been achieved via ballot measure for the first time in American history. After passing 65-35 in November, Question 2 is now law and Massachusetts has joined the eleven other U.S. states to have decriminalized possession of small amounts of pot. As with any significant change in the law, only time and creative lawyering will give us an outline of the full contours of this thing. Meanwhile: (Full analysis continues)

massachusetts Massachusetts law

“For preventing disorders, arising in several places within this jurisdiction by reason of some still observing such festivals as were superstitiously kept in other communities, to the great dishonor of God and offense of others: it is therefore ordered by this court and the authority thereof that whosoever shall be found observing any such day as Christmas or the like, either by forbearing of labor, feasting, or any other way, upon any such account as aforesaid, every such person so offending shall pay for every such offence five shilling as a fine to the county.”

From the records of the General Court,
Massachusetts Bay Colony
May 11, 1659

massachusetts, stupid laws Massachusetts law, stupid laws